Someone in recent days referred to Trump’s new Supreme Court nominee Judge Brett Kavanaugh as the Zelig of modern Republican politics as he has apparently played a role in nearly every major GOP political endeavor over the past quarter century. He worked with Ken Starr during the Clinton investigation in the 1990s and reportedly penned some of the crazier passages in the infamous Starr report. He served on the George W. Bush presidential campaign and played an important role in the Florida recount controversy, subsequently taking a job in the Bush White House, where he met his wife. Bush then appointed him to the DC Circuit Court, though not without a struggle.
Of course, none of this would be considered disqualifying for a lifetime appointment on the nation’s highest court. That said, let’s not pretend that appointment and confirmation isn’t an intrinsically political process, much as impeachment is. If an attorney can refuse a juror based on the way he or she looks, I think it’s fair to expect that a senator has every right to reject a presidential nominee on the basis of his or her judicial philosophy. The right always attempts to characterize their “originalist” approach to constitutional law as a pragmatic practice of calling balls and strikes, following the law and the constitution as written, etc. The truth is far more complicated, of course – they have a political agenda that they’ve been pursuing relentlessly for decades while the center-left has been asleep on this issue. That’s why, even with Kennedy, we have a Supreme Court that’s well to the right of the American people.
So, given the fact that we are a politically divided nation (there are more people on the center-left than on the right, but let’s call it even for the nonce) and given the fact that judicial appointments are always made with a political agenda in mind, why the hell don’t we leave the Court the way it is, split down the middle, 4 to 4? It worked for Mitch McConnell in 2016, and frankly, it worked for me, too, particularly with decisions like Freidrichs v. California Teachers Association. As long as we as a nation are politically polarized, our highest court should reflect that polarization. A raft of 4-to-4 ties would simply mean there would be no national precedents set unless there was an unusual level of consensus on a specific case, such that one or more members of the opposition joined in a majority opinion. That seems like a better situation than having a permanent, predictable reactionary majority on the Court that is way out of step with public sentiment and basic human needs.
So, count me among those who say denial is better than delay. Block Trump’s appointment – Kavanaugh or no – and leave the Court at eight justices.
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